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Labor Relations Update

In for the Long Haul as the Fifth Circuit Upholds NLRB’s “Quickie” Election Rule

Posted in NLRA, NLRB

Last April, the National Labor Relations Board (“Board”) implemented it’s new expedited union representation procedures. On June 10, 2016, in Associated Builders and Contrs. Of Tex v. NLRB, 15-cv-50487  2016 U.S. App. LEXIS 10552 (5th Cir. June 10, 2016) the Fifth Circuit upheld the new procedures, commonly called “quickie” election rules – – rejecting the Associated Builders and Contractors of Texas’ (“ABC”)) arguments that the rule exceeded the Board’s authority under the National Labor Relations Act (“NLRA”) and that it violated the Administrative Procedures Act (“APA”).

Specifically, ABC alleged that the rule exceeded the Board’s authority under Section 9 of the NLRA by allowing regional directors to preclude employers from contesting voter eligibility issues. The Court, however, found that ABC did not identify any statutory language or legislative history requiring litigation of all voter eligibility issues at the pre-election hearing. The Fifth Circuit agreed with the Board’s position that Inland Empire District Council, Lumber & Sawmill Workers Union v. Millis, 325 U.S. 697, 706 (1945) granted the Board wide discretion to devise the procedures to determine whether a representation question exists and rejected ABC’s argument that Inland was inapplicable because it was decided prior to the Taft-Hartley amendments.

ABC also challenged the rule on grounds thathe the rule’s provisions requiring disclosure of personal employee information both before and after the pre-election hearing conflicted with federal privacy law and that the requirements were ‘arbitrary and capricious’ under the APA. The court rejected the first argument on grounds that ABC failed to identify any federal law restricting disclosure of employee information to unions by employers. With regards to the second argument, the court found that the Board had properly considered privacy concerns, advancement in communication technology and the potential for union abuse in formulating rule. As a result, the court held that the Board’s rule was not ‘arbitrary and capricious’.

The Court also rejected ABC’s claims that the new rule would violate the free speech provision of the NLRA. Rather, the court held that the discretion afforded regional directors in setting election dates, provided sufficient protection for employers and employees to engage in meaningful speech.

Given the Court’s decision, employer’s must continue to be prepared for operating under the “quickie” rules in the event of an organizing drive. If you have any questions regarding the rules or further impacts of the 5th Circuit’s decision, we are always available to assist you.

Board Reverses 32-Year-Old Rule Allowing Employers to Oust Mixed-Guard Unions

Posted in Bargaining units, NLRA, NLRB, Section 9(b)

For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long path of upsetting established precedent, on June 9, 2016, the National Labor Relations Board (“NLRB” or “Board”) reversed this and made clear that going forward a voluntary recognition of such a mixed-guard unit will require continued recognition just like any other bargaining unit. Loomis Armored US, Inc., 364 N.L.R.B. No. 23 (June 9, 2016).

A “mixed-guard union” is a labor organization that represents both security guards and other nonguard employees. Section 9(b)(3) of the National Labor Relations Act (“NLRA” or the “Act”) expressly prohibits the Board from certifying mixed-guard unions as the collective bargaining representative for security guards.  However, the Board has long held that an employer may voluntarily recognize a mixed-guard union as the representative of its employees.

In 1984, in Wells Fargo, the Board held that if an employer voluntarily recognizes a mixed-guard union, it may later withdraw recognition from the union for any reason as long as there was no contract in effect. Wells Fargo Corp., 270 N.L.R.B. 787 (1984).  The Board’s holding was based in part on the legislative intent behind Congress enacting Section 9(b)(3) of the Act, which was aimed “to shield employers of guards from the potential conflict of loyalties arising from the guard union’s representation of nonguard employees or its affiliation with other unions who represent nonguard employees.”

In Loomis, the Board completely overruled Wells Fargo.  The Board held that once an employer voluntarily recognizes a mixed-guard union, it may only withdraw recognition if the union loses majority support among the employees.  This rule applies to all other bargaining units, and the Board reasoned that the same rule should apply to guards as well – – placing an emphasis on the importance of preserving “stability in collective bargaining,” a tenet of the NLRA.

The Board dismissed the presence of any inconsistencies between its holding and the “conflict of loyalties” that concerned Congress when enacting Section 9(b)(3). The Board explained that employers recognizing mixed-guard unions will trade their ability to remove the union with whatever advantage recognizing the union brings the employer:  “An employer of guards thus may conclude that the potential conflict that concerned Congress either is not present or is outweighed by the potential advantages of entering into a collective-bargaining relationship with a mixed-guard union. And, in fact, a significant number of employers have availed themselves of this option.”  (Of course, those employers voluntarily recognized when they knew they could withdraw that recognition without challenge in the future.)

Importantly, though, the Board refused to apply its holding retroactively. Therefore, the Board’s rule from Wells Fargo will apply to all past and current cases, and the new Loomis holding will only apply to future cases.

Board Member Miscimarra dissented from the majority, arguing that the Board’s holding in Wells Fargo is more in line with the Congressional intent behind Section 9(b)(3) of the Act.  He stated  that “[i]f Congress deemed it objectionable to have guards represented by ‘certified’ mixed guard/nonguard unions, such an arrangement would appear equally objectionable when provided by a mixed guard/nonguard union that received voluntary recognition.”  Thus, Member Miscimarra found that it would be most consistent with Congressional intent to never allow mixed-guard unions to represent guards.  Still, he acknowledged some countervailing reasons for permitting voluntary recognition of mixed-guard unions, such as the need for unions to expand their membership.  Ultimately though, Member Miscimarra held that the Board in Wells Fargo applied Section 9(b)(3) in the “most appropriate manner.”  He further concluded that after thirty-two years of the Wells Fargo rule, the Board lacked compelling reasons to reverse the rule.

This case is very important for companies that employ security guards. Employers that currently recognize a mixed-guard unit/union must understand their continuing obligation to recognize the union, even after contract expiration – – a change which may materially impact bargaining leverage in future negotiations.  Moreover, employers with non-union security guards should also be cognizant of the shift in the law, which may limit the likelihood of future voluntary recognitions.  If a mixed-guard union seeks voluntary recognition, the employer should be aware that agreeing to that request will now bind the employer unless and until the union loses majority support.

The Right to Withdraw Recognition is Under Attack

Posted in NLRB

For over 65 years, an employer has had a legal right to withdraw recognition from an incumbent union based on the union’s lack of majority status. In 1951, in Celanese, the NLRB permitted withdrawal based on the employer’s “good faith belief” for the lack of majority status. In 2001, in Levitz Furniture, the standard was changed to require “objective evidence” to exercise the right to withdraw.

Often overlooked by the holding in Levitz Furniture was the fact that the then General Counsel sought to eliminate the right to withdraw recognition unless there was an RM or RD election to determine majority status. That dramatic change in the long-standing precedent was rejected by the NLRB in Levitz Furniture.

On May 9, 2016, the ghost of the former General Counsel’s position in Levitz Furniture was resurrected. Richard Griffin, the current General Counsel has instructed the NLRB’s Regional Directors to issue a complaint in situations where a withdrawal of recognition is not based on an NLRB election.

Thus, going forward, an employer that withdraws recognition acts at its peril until the validity of sixty-five years of precedent is resolved in the courts. Those employers willing to insist on their Celanese/Levitz Furniture rights may, however, find solace in the fact that the charge in Levitz Furniture was filed in 1994 and the NLRB’s decision took over six years (during which the NLRB sought briefs from non-parties on the then General Counsel’s “election only” position). If it takes that long this time around, who knows who the General Counsel will be under the next administration?

NLRB Requests Amicus Briefs in Two Significant Cases

Posted in NLRB

On Friday, February 19, 2016, the National Labor Relations Board invited interested individuals and organizations to file amicus briefs on two important legal issues where the Board is considering overturning existing precedent.

In one case, King Soopers, Inc., NLRB, No. 27-CA-129598 (2/19/16), the NLRB’s General Counsel has asked the Board to change its long-standing practice of awarding discriminatees with expenses incurred when seeking new employment only when the discriminatee received interim earnings.  Currently, the NLRB only awards reasonable search-for-work and interim employment expenses when the discriminatee receives interim earnings.  However, the General Counsel is now seeking to expand the types of cases where discriminatees can be awarded such expenses to cover situations where discriminates do not receive any interim earnings.  In other words, the General Counsel wants to re-write the law so that if a terminated employee searches for new work and incurs costs in the process, but does not find new work, the employer should still be liable for those expenses.  The deadline to file an amicus brief with the Board is March 18, 2016.

In the second case, U.S. Postal Serv., NLRB, No. 7-CA-142926 (2/19/16), the NLRB is seeking amicus briefs concerning whether the Board should allow administrative law judges (ALJs) to issue “consent orders,” subject to review by the Board, settling unfair labor practice cases where no party other than the Respondent has agreed to the terms of the settlement, and over the objection of the General Counsel.  Current Board practice permits ALJs to bless settlements without approval of the General Counsel or other parties.  The General Counsel is asking the Board to reverse precedent by not permitting ALJs to settle cases over the objection of the General Counsel, even if the ALJ believes that the Respondent’s settlement offer better effectuates the purposes of the NLRA than continuing to litigate the case.  Similarly, the due date to file briefs with the Board on this issue is March 18, 2016.

NLRB Issues Union Friendly Decision Regarding Applicability of Quickie Rules: When 94% Just Ain’t Enough

Posted in NLRB

With that the NLRB’s quickie election rules going into effect in April 2015, we are just now starting to see the Board decide cases applying the new rules.

In Danbury Hospital, Case 01-RC-153086, the Regional Director for Region 1 on October 16, 2015, lent his interpretation to one of the new requirements of the quickie election rules, namely the employer’s obligation to provide employees’ personal phone number and personal email address if such data was “available” to the employer.

There, the employer provided the union with all of the personal phone and email addresses it had in its human resources computer system- about 94% of the bargaining unit.  The human resources computer system did not have this data for the other 6% of the bargaining unit.  An election was held where the union was narrowly defeated.  The union filed objections to the election and asking for a re-run election claiming that the employer failed to comply with the new quickie election rules by failing to provide the personal email addresses and phone numbers for the other 6% of the bargaining unit.  At the objections hearing, it was discovered that one of the employer’s supervisors maintained an independent list of email addresses and phone numbers separate from the human resources computer system.

The Regional Director, agreeing with the union, found that because the employer did not supplement the list it collected from its human resources software with the supervisor’s list it failed to comply with the new rules and thus ordered a re-run election.

Based on this case, it is clear that the NLRB is taking a very broad view of the new quickie election rules.  Employers should take steps now to consolidate employees’ personal information prior to union organizing attempts.  If you have any questions about this case, or the Board’s new quickie rules, please feel free to contact us.

The National Labor Relations Board says “Happy Labor Day” with Flurry of Late Summer Pro-Union Moves

Posted in NLRB

While some people may have been on vacation at the end of August, the past few weeks have been extremely busy at the National Labor Relations Board (“NLRB” or “Board”), with a series of decisions that will continue to make it easier for unions to organize non-union employers.

Virtual Organizing Has Arrived! The General Counsel Issues Guidance that Electronic Signatures Are Valid In Representation Cases

On September 1, the General Counsel issued guidance that unions may submit electronic signatures to satisfy a showing of interest in representation cases. No longer will an actual signed union authorization card be necessary, opening the door for virtual organizing, eliminating physical barriers that may previously have prevented union organizers from communicating with employees.
Memorandum GC 15-08 details the requirements for petitions containing electronic signatures to be valid. Such submissions must include:

  1. the signer’s name;
  2. the signer’s email address or other known contact information (e.g., social media account);
  3. the signer’s telephone number;
  4. the language to which the signer has agreed (e.g., that the signer wishes to be represented by said union for purposes of collective bargaining or no longer wishes to be represented by said union for purposes of collective bargaining);
  5. the date the electronic signature was submitted; and,
  6. the name of the employer of the employee.

The General Counsel also requires the party submitting the electronic signature to submit additional information identifying and explaining what technology was used to ensure that the electronic signature is that of the signatory employee, that the employee herself signed the document, and that the electronically transmitted information is the same information seen and signed by the employees.

While the General Counsel notes that its requirements are more stringent that what is required for non-electronic signatures, this is a dramatic shift in how unions can generate the required 30% interest to get a Board election. With virtual organizing, it makes it more likely that an employer will never see the organizing activity (before it’s too late).

Labor Board Rules That An Employer May Not Terminate Dues Deduction Upon Expiration of CBA: Take Two

In a long expected decision, on August 27, the NLRB, in Lincoln Lutheran of Racine, 362 NLRB No. 188, a 3-2 decision, ruled that an employer may not unilaterally cease making dues deductions upon the expiration of a collective bargaining agreement. This decision explicitly overturns Bethlehem Steel, a case which stood for more than 50 years.

If this sounds familiar to you, you are not having déjà vu. The NLRB decided a case in 2012 with the identical holding. However, the 2012 case was vacated as a result of the United States Supreme Court’s decision in Noel Canning. Thus, Bethlehem Steel, while on very shaky footing, was given a three year reprieve…until now.

Employers with collective bargaining agreements should review their agreements to determine whether they have a dues deduction provision. If so, employers should now treat the provision like any other mandatory subject of bargaining and not deviate from the provision even after a contract has expired.

NLRB’s New Successorship Rule Raises the Question of Whether Worker Retention Statutes Are Preempted By Federal Law

Also on August 27, 2015, the National Labor Relations Board decided in GVS Properties, LLC, 29-CA-077359, 362 NLRB No. 194 (Aug. 27, 2015), the issue of when an employer required to hire its predecessors’ employees under a state or local worker retention law becomes a successor (under labor law) and is required to recognize and bargain with the union representing the predecessor’s employees.

The statute at issue in GVS Properties, the New York City Displaced Building Service Workers Protection Act (“DBSWPA”), mandates that a successor employer in the building service industry retain its predecessor’s workers for a 90-day transition period. Many other state and local statues contain similar requirements. Establishing new law, the Board held – in a split decision – that when such a statute requires an employer to hire its predecessor’s employees, the successorship doctrine applies when the employer first hires the workers, not after the mandatory retention period, even though the employment is mandated by law, not by choice.

The Board’s holding substantially limits the ability of building service employers and others subject to worker retention statutes to structure their employment relationships when acquiring a company. The Board’s decision, however, may have even broader implications, as the most significant, unintended consequence may be to call into question the lawfulness of the worker retention statutes themselves. Board Member Johnson predicted in his dissent that the Board’s holding will result in the statutes being preempted by federal law: “Ironically, it could prove the death knell for local worker retention statues. By allowing a local statute to control a matter of federal labor law, the majority paves the way for these statutes to run headlong into the Supremacy Clause of the Constitution.” Member Johnson argued that it is the statutory responsibility of the Board, not local governments, to fashion federal successorship law. Thus, Member Johnson claimed that the Board’s decision in GVS Properties created a “reverse preemption” situation, where “[t]he local tail will be wagging the Federal Supremacy Clause dog.”

Whether Member Johnson’s prediction rings true will be up to the federal courts, where this issue will be decided. The courts have already provided some forecast for what is to come. In an earlier proceeding involving the same employer and facts as in GVS Properties, Judge Cogan of the Southern District of New York stated that based on the Board’s position that a new employer should become a successor before the 90-day retention period expires, “the New York City Council has superseded the Supreme Court on a matter of national labor policy…” Paulsen ex rel. N.L.R.B. v. GVS Properties, LLC, 904 F. Supp. 2d 282, 291-92 (E.D.N.Y. 2012). While the D.C.. Circuit has suggested in a prior case (Washington Serv. Contractors Coalition v. District of Columbia, 54 F.3d 811 (D.C. Cir. 1995) that the Board’s new position may be valid, much more recently two other circuit courts rejected challenges to worker retention statutes on preemption grounds but only because they assumed that successorship would not apply until after the mandatory retention periods. Rhode Island Hospitality, 667 F.3d 17 (1st Cir. 2011) and California Grocers Assn. v. City of Los Angeles, 52 Cal. 4th 177 (2011). With this type of split already existing, we may see this issue before the Supreme Court in short order.

And Don’t Forget…

The Board’s recent decision greatly expanding the scope of the reach of its joint employer test in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015). This departure from its long-standing joint employer standard, which we summarized last week, will have the Board applying a much broader standard in assessing whether a joint employer relationship exists. http://www.laborrelationsupdate.com/nlrb/too-close-for-comfort-nlrb-departs-from-long-standing-joint-employer-standard/.

The flurry of pro-union activity by the Board has given employers a lot to digest. Stay tuned for additional updates, and we’re available to work through any questions you may have.

Too Close for Comfort? NLRB Departs from Long Standing Joint Employer Standard

Posted in Employer policies, NLRB

Citing “changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships,” in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (August 27, 2015), a 3-2 National Labor Relations Board majority (Pearce, Hirozawa, McFerran) significantly revised and broadened the standard for assessing joint-employer status under the National Labor Relations Act. The primary justification for the Board’s sweeping departure from the current standard was that it did not “best serve the Act’s policies of encouraging the practice and procedure of collective bargaining,” considering the expansion of workplace arrangements including a diversity of subcontracting and contingent employment relationships since the 1990s.  Click here to read more.

DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized

Posted in NLRA, NLRB, Recess appointments, Uncategorized

The political gridlock in Washington DC caused several years of tumult at the NLRB, spawning two Supreme Court decisions (Noel Canning and New Process Steel) and several courts of appeals decisions regarding the Board’s ability to act without regular appointments, and resulted in scores of decisions having to be reconsidered by a newly constituted Board.  Most of the litigation during the last few years involved whether the Board had the requisite quorum it needed to act.  While the Board quorum received most of the attention, there also exists an entire line of arguments attacking the authority of perpetual Acting General Counsel Lafe Solomon to act during his brief tenure.  Of course, regardless of the type of claim, the business of the NLRB ground on despite these substantial issues being raised with little thought to the consequences.

In Southwest Ambulance v. NLRB, Case No. 14-1107 (DC Cir. August 7, 2015), the DC Circuit Court of Appeals held that the Acting General Counsel’s appointment violated the Federal Vacancies Reform Act (“FVRA”), which meant that during the period of violation the NLRB (as in all Regions) was without authority to issue a complaint for a 23 month period.  In Southwest Ambulance, the Court was presented with an allegation that the employer made a unilateral change to a term or condition of employment upon expiration of a collective bargaining agreement in violation of the NLRA.  After a hearing, the Administrative Law Judge concluded a violation occurred.  In its exceptions, the employer challenged the complaint on the grounds that Solomon did not have authority to issue a complaint because his appointment was in violation of the FVRA.  This argument was rejected by the NLRB, which upheld the unfair labor practice on appeal.  The employer appealed to the DC Circuit and the appeals court refused to enforce the NLRB’s order finding the complaint was issued without proper authority.

In addressing whether the FVRA was properly followed, the Court noted that the FVRA sets limits on who can serve pursuant to the statute:   “a person may not serve as an acting officer for an office under this section if, (a) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.”

The Court reviewed the timeline of events.  In June 2010, Ronald Meisburg resigned as NLRB General Counsel.  The President, citing the FVRA, directed Soloman who was then the Director of the NLRB’s Office of Representation Appeals, to serve as Acting General Counsel.  On January 5, 2011, the President submitted Solomon’s nomination to the Senate.  Ultimately, Solomon was re-nominated and that nomination was withdrawn in 2013.  Current General Counsel Richard Griffin’s nomination was submitted instead.

The Court held that Solomon’s appointment under the FVRA was in violation as of January 2011 when the President submitted his nomination to the Senate.  As a consequence, the Court held that under Section 3348(e)(1) of the FVRA, any action taken in violation of the statute was void.  Specifically, that provision reads in part:  “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be subsequently ratified.”

The Court ruled that since the complaint issued against the employer was void and not subject to ratification, the NLRB’s consideration of the case on appeal (by a properly constituted Board) did not save the case.  The court stressed the narrow nature of its ruling:

[W]e emphasize the narrowness of our decision.  We hold that former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013.  But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions.  We address the FVRA objection in this case because petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.  We doubt that an employer that failed to timely raise an FVRA objection–regardless of whether proceedings are ongoing or concluded–will enjoy the same success.

Thus, while there are many cases in the NLRB process challenging Solomon’s ability to act during his tenure, there likely are only a few that raised this specific attack in a timely fashion:  that Solomon’s actions were in violation of the FVRA.  Still, it is hard to imagine how, if the FVRA explicitly states that all actions taken in violation of the statute are void and not subject to ratification, this argument could not be raised at any time.  Solomon took many actions during the 23 month period at issue, including appointing Regional Directors, issuing complaints, seeking injunctive relief, all of which could be considered void and not subject to ratification.

NLRB Refuses to Approve Withdrawal of Charges Despite Settlement of Class Action Case

Posted in Arbitration, Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

We know that, among many other common employer policies, the NLRB considers many mandatory arbitration agreements to be unlawful, particularly where they prohibit class or collective actions.  See Murphy Oil USA, Inc., 361 NLRB No. 72 (2014).  Unlike a more run of the mill handbook violation where the government seeks removal or modification of the policy, an unlawful arbitration agreement can result in attorneys fees paid to the charging party for monies spent defending a motion to compel arbitration.  The NLRB recently handed down a case that demonstrates yet another pitfall of not having all policies vetted for legality.

In Flyte Tyme Worldwide, 362 NLRB No. 46 (March 30, 2015) the Board, on public policy grounds, refused to approve the withdrawal of charges concerning an alleged unlawful mandatory arbitration provision, even though the parties reached a substantial private settlement.  In the case, employees filed a class action wage and hour lawsuit and the employer sought to compel individual arbitration pursuant to a mandatory arbitration agreement.  The employees’ attorney, faced with the prospect of litigating the claims on an individual basis, filed charges with the NLRB challenging the lawfulness of the arbitration policy.  The NLRB issued complaint and an Administrative Law Judge, relying on D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013) found the policy violated Section 8(a)(1) of the Act.  The Judge ordered revision of the policy, notice to employees, file a motion in court to withdraw the motion to compel, and to reimburse the class representatives for any “legal or other expenses related to their opposing the [employer’s] motion to dismiss and compel individual arbitration…”

While the case was on appeal to the NLRB, the employer and employees reached a settlement of the wage and hour litigation, providing for a payment of $900,000.  The payment represented settlement to the employees and “attorneys’ fees, and litigation expenses, taxes, and interest.”  In light of the settlement, the Charging Party’s attorney sought withdrawal of the charge.   The Region did not oppose the motion to withdraw the charges.  The NLRB, however, refused to approve withdrawal of the charges.  In rejecting the motion to withdraw the charge, the NLRB noted while it

is firmly committed to promoting the public interest in encouraging mutually agreeable settlements without litigation, ‘[i]t is well established that the Board’s power to prevent unfair labor practices is exclusive, and that its function is to be performed in the public interest and not in vindication of private rights.  Thus, the Board alone is vested with lawful discretion to determine whether a proceeding, when once instituted, may be abandoned.’

The Board concluded the settlement did not effectuate the policies of the Act because “it did not address, much less provide any remedy for, the violations alleged in the charge.”  In this regard, the fact the settlement did not require the employer to modify or rescind its arbitration policy was reason not to let go of the charges.  The Board also noted that the settlement was not contingent on the Board’s approval of the withdrawal.  The Board was indicating that the subject of the charges, — the arbitration policy, — a policy which presumably applied to other employees was simply not addressed leaving things as they existed prior to the charges (and the wage and hour lawsuit) the same.

This case illustrates the need to understand the landscape and account for government oversight when working out settlements with private parties where NLRB charges have been filed.  Parties often believe they can just settle and that the government will go along with any settlement as long as the private parties are happy.  Not so.  The government will scrutinize private settlements, even those involving discharges as well as policy violations, to make sure that any settlement addresses the public policy concerns.

Union Represented Employee Not Entitled To Co-Worker Witness During Investigatory Interview, NLRB Rules

Posted in General Counsel, Investigations, Mandatory submissions, NLRA, NLRB, Non-Union employers, Protected activity, Section 7, Section 8(a)(1), Uncategorized, Unfair Labor Practices, Workplace Investigations

The last few months at the NLRB have been relatively quiet, save of course for the ambush election rules which went into effect on April 15; the true impact of these rules has yet to be revealed.  Many of the recent Board cases involve correcting decisions that were  invalidated by the Supreme Court in its Noel Canning recess appointment decision.

We recently reported that the NLRB Division of Advice had determined that an employer’s search of a company car during an investigation into employee misconduct did not trigger Weingarten rights. Cases involving Weingarten rights, the right of a union represented employee to seek representation in an investigatory interview, are interesting because the potential scenarios are limitless.  The Board recently addressed a fairly unique situation in Asset Protection & Security Services, L.P., 362 NLRB No. 72 (April 22, 2015), a case where it dismissed a complaint even though an employer denied a union represented employee’s request to have a co-worker witness, as opposed to a representative, in an investigatory interview.

The employer in Asset Protection & Security Services contracted with the federal government to supply armed and unarmed transportation and detention guards to a federal immigration facility.  The employee guards in question were represented by a union.  The parties’ collective bargaining agreement enshrined Weingarten rights, including a requirement that the employer release the union representative from work and to pay that person for time spent undertaking such duties.  Charging Party was a guard who had served as an elected union representative at various times but did not hold such a position during the time of the events of the case.

During a morning “muster” of guards, the Charging Party had an encounter with a supervisor which was considered confrontational and insubordinate by the employer.  The employer initiated an investigation and placed the Charging Party on leave pending completion of the inquiry.  The employer informed the Charging Party that he would need to come in for an interview about the incident, clearly the very type of interview governed by Weingarten because discipline or discharge was a possible outcome.

The Charging Party guard requested a union representative and asked that an international union representative represent him.  For reasons which are not set forth in the decision, the international representative did not wish to enter the facility and so the Charging Party selected a different representative from the local union, the individual who was the point of contact for disciplinary interviews.  Ultimately, the Charging Party changed his mind and in an e-mail exchange told the employer that he would represent himself in the interview.  An interview was then scheduled.

On the date and time of the interview, the Charging Party appeared at the interview along with a fellow guard who was supposed to be working.  The Charging Party asserted his co-worker would act as his witness.  The employer denied the request noting that the witness was not a union representative, was supposed to be working and was in fact on the clock.  The employer directed the co-worker to return to his duties, leaving only the Charging Party and employer representative.  During the interview the employer asked the employee to review a record of discipline that would suspend him for five days for acting in an insubordinate manner at the muster.  The Charging Party refused to answer some questions during the interview and refused to sign the notice of suspension.  It was noted that an employee’s refusal to sign a disciplinary document was not unusual.

After the interview was concluded the employer decided to terminate the employee for insubordination during the interview, including his refusal to answer questions.

The General Counsel alleged that the employer’s refusal to allow an employee witness during the interview violated the Act as a denial of Weingarten rights.

The Administrative Law Judge dismissed the complaint, a decision which was upheld by the NLRB.  The ALJ concluded the Charging Party’s Weingarten rights had not been violated because:

[Charging Party’s] request for an employee witness at his self-represented interview is not a right specifically guaranteed in Weingarten as it is currently applied.  The right to a Weingarten representative is a right to a representative who is an agent of the labor organization which serves as the exclusive representative of the employees.  Weingarten, supra, 420 U.S. at 257-258

The ALJ also rejected the General Counsel’s assertion that an employee witness was mandated under Weingarten because a conflict of interest existed between the Charging Party and local union leadership because they had run against each other for union positions.  The ALJ concluded that while the union’s representation of Charging Party in this matter “might have been awkward, it is insufficient to warrant a finding of hostility, conflict of interest, or adverse interest.”

In upholding the dismissal, the Board emphasized that it was relying on the fact the Charging Party had indicated that he would represent himself and that “under these particular facts that [Charging Party] did not effectively request a Weingarten representative.”

Why would the NLRB be so careful in its ruling upholding the ALJ’s decision?  The short answer may be that the General Counsel and NLRB are looking for a case to extend Weingarten rights to the non-union context, which would of course mean that an employee witness would be permissible given that no representative exists in that context.  Indeed, the General Counsel has said as much in his GC Memorandum 14-01, Mandatory Submissions to Advice (February 24, 2014) which requires the Regions to send to the Division of Advice, cases “involving the applicability of Weingarten principles in nonunionized settings. . .”

Over the years, the Board has gone back and forth on whether to apply Weingarten rights in the non-union setting.  Currently, Board law holds that such rights do not apply in the non-union context.  So, it appears it may be only a matter of time before the law in this area changes…..again.